Pitken & Hendry

Case [2008] FamCA 186


FAMILY COURT OF AUSTRALIA

PITKEN & HENDRY [2008] FamCA 186
FAMILY LAW – CHILDREN – Relocation – Best interests – Parental responsibility – relocation principles generally – s 65DAA – Equal time – Substantial and significant time
Family Law Act 1975 (Cth)
AMS v AIF (1999) 199 CLR 160
CDJ & VAJ (1998) 197 CLR 172 at 219
Goldrick & Goldrick [2007] FamCA 1260
Goode & Goode (2006) FLC 93-286
Mazorski v Albright [2007] FamCA 520
Sampson & Hartnett (No. 10) [2007] FamCA 1365
Secretary, Department of Health and Community Services v. JMB & SMB (1992) 175 CLR 218 at 270-2
Taylor & Barker (2007) 37 FamLR 461
U v U (2002) 211 CLR 238
APPLICANT: Ms Pitken
RESPONDENT: Mr Hendry
FILE NUMBER: BRC 10521 of 2007
DATE DELIVERED: 20 March 2008
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Murphy J
HEARING DATE: 18-19 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Byrne of Counsel
SOLICITOR FOR THE APPLICANT: Hatzis Lawyers
COUNSEL FOR THE RESPONDENT: Mr Jordan of Counsel
SOLICITOR FOR THE RESPONDENT: Wallace Davies Solicitors

Orders

IT IS ORDERED THIS DAY THAT

  1. The application by the Mother, that the children of the marriage A, born … September 2002, and L, born … May 2005, (“the children”) live with her in the United States of America, is dismissed.

  2. The parties have equal shared parental responsibility in respect of all major long-term issues with respect to the children.

  3. Each of the parents have parental responsibility in respect of decisions that are made in relation to the children, that are not major long-term issues, during such time that the children are in their respective care.

  4. The children live with the Mother.

  5. The children spend time with the Father at all such times as might be agreed between the parties, and failing further or other agreement, as follows:

    (a)From 9.00am Wednesday 26 March 2008 until 9.00am Monday 31 March 2008 and between those times on those days, each alternate week thereafter;

    (b)For one half of the Easter, June/July and September/October school holidays each year;

    (c)For one half of the December/January school holidays each year, save that time shall be in blocks of not more than two weeks in the 2008/09 holidays.

  6. The children communicate with the Father at all such reasonable times as might be agreed between the parties, and failing further or other agreement, as follows:

    (a)By email or letter at all reasonable times;

    (b)By telephone or webcam on Thursday 2 April 2008 between 6.00pm and 7.00pm and on that day and between those hours, in each alternate week thereafter.

  7. The children communicate with the Mother when spending time with the Father at all such reasonable times as might be agreed between the parties, and failing further or other agreement, as follows:

    (a)By email or letter at all reasonable times;

    (b)By telephone or webcam on Thursday 27 March 2008 between 6.00pm and 7.00pm and on that day and between those hours, in each alternate week thereafter.

  8. Save as otherwise agreed in…

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Pitken & Hendry [2008] FamCA 186
Case
[2008] FamCA 186
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CaseChat Overview and Summary

This matter concerned an application by the Mother for the children of the marriage, A and L, to live with her in the United States of America. The application was heard by Murphy J.

The primary legal issue before the court was whether the children should live with the Mother in the United States. The court was also required to determine the nature of parental responsibility and the arrangements for the children's time with each parent and their communication.

Murphy J dismissed the Mother's application for the children to live in the United States. The court ordered that the parties have equal shared parental responsibility for major long-term issues concerning the children, and that each parent has responsibility for decisions made during their care for non-major long-term issues. The children were ordered to live with the Mother, with specific provisions for the children to spend time with the Father, including alternate weeks, half of school holidays, and specific arrangements for Christmas. The court also made orders regarding communication between the children and each parent, and further provisions for face-to-face time on birthdays and during Christmas. Additionally, the court ordered that each party must facilitate communication with health professionals and educational institutions, inform the other parent of the children's activities, and notify them of any medical emergencies or significant welfare issues.

Orders

Orders of the court

IT IS ORDERED THIS DAY THAT

1.

The application by the Mother, that the children of the marriage A, born … September 2002, and L, born … May 2005, (“the children”) live with her in the United States of America, is dismissed.

2.

The parties have equal shared parental responsibility in respect of all major long-term issues with respect to the children.

3.

Each of the parents have parental responsibility in respect of decisions that are made in relation to the children, that are not major long-term issues, during such time that the children are in their respective care.

4.

The children live with the Mother.

5.

The children spend time with the Father at all such times as might be agreed between the parties, and failing further or other agreement, as follows:

(a) From 9.00am Wednesday 26 March 2008 until 9.00am Monday 31 March 2008 and between those times on those days, each alternate week thereafter;

(b) For one half of the Easter, June/July and September/October school holidays each year;

(c) For one half of the December/January school holidays each year, save that time shall be in blocks of not more than two weeks in the 2008/09 holidays.

6.

The children communicate with the Father at all such reasonable times as might be agreed between the parties, and failing further or other agreement, as follows:

(a) By email or letter at all reasonable times;

(b) By telephone or webcam on Thursday 2 April 2008 between 6.00pm and 7.00pm and on that day and between those hours, in each alternate week thereafter.

7.

The children communicate with the Mother when spending time with the Father at all such reasonable times as might be agreed between the parties, and failing further or other agreement, as follows:

(a) By email or letter at all reasonable times;

(b) By telephone or webcam on Thursday 27 March 2008 between 6.00pm and 7.00pm and on that day and between those hours, in each alternate week thereafter.

8.

Save as otherwise agreed in writing between the parties, the time spent by the children with each of their parents otherwise in accordance with these orders, shall alter so as to permit the children to spend face-to-face time with the parent not otherwise caring for them pursuant to these orders as follows:

(a) From 1.00pm to 6.00pm on each child’s birthday, if on a day when either child is not attending school or pre-school, and otherwise between 4.00pm and 7.00pm;

(b) For four (4) hours on each parent’s birthday, if such day falls on a day when either child is not attending school or pre-school, and otherwise for two (2) hours on each such birthday;

(c) With the Father from 5.00pm on 24 December until 2.00pm on 25 December in 2008, and between those hours on those days in each alternate year thereafter;

(d) From 2.00pm on 25 December until 5.00pm on 26 December in 2009 and between those hours on those days in each alternate year thereafter.

9.

Each party shall do all such things and sign all such documents as may be necessary or required to:

(a) Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult;

(b) To speak to, and receive oral or written communication from, any school, pre-school, or other educational institution attended by the children;

(c) Make the other parent aware of the times, dates and places of any sporting or extra-curricular activities engaged in by the children, and to permit attendance at, and reasonable participation in, any such activities;

(d) Keep the other parent appraised of their residential address and telephone contact number;

(e) Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.

IT IS FURTHER ORDERED THAT

10.

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

11.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

12.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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